March 13, 2014 – The U.S. Court of Appeals for the Seventh Circuit recently reviewed plea dealings that took place 15 years ago in a Wisconsin murder case, concluding that the defense lawyer did not botch a plea deal because a plea deal was never offered.

In 1999, William Kerr killed a man who was having an affair with his wife. Anthony Graff visited Kerr’s Wauwatosa home to tell Kerr that he was going to steal his bride. Kerr responded with a fatal shotgun blast to Graff’s abdomen. Then Kerr turned himself in.

Later that year, a Wisconsin jury convicted Kerr of first-degree intentional homicide. He was sentenced to life in prison with possible parole after 21 years. Kerr’s state court appeals were unsuccessful, and he later filed a habeas corpus action in federal court.

Kerr said his defense attorney was ineffective because he provided incorrect information about the sentence he would receive in accepting an offered plea deal.

That is, Kerr said his lawyer did not tell him the correct sentence range for first-degree reckless homicide, and that was the deal the prosecutor had offered.

The federal district court in Wisconsin denied Kerr’s habeas corpus petition. But the U.S. Court of Appeals for the Seventh Circuit, in 2012, ordered an evidentiary hearing on the issues Kerr brought forth concerning the prosecutor’s alleged plea offer.

The warden appealed to the U.S. Supreme Court, which remanded the case in light of the court’s earlier decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012). Cooper clarified the law in habeas corpus actions alleging a lawyer’s deficiency in plea negotiations.

On remand, the district court reviewed the record and testimony of Kerr, Kerr’s defense lawyers, and the prosecuting attorney to determine that the prosecutor never actually offered a plea deal to Kerr, even though his lawyer may have referenced a deal.

Recently, in Kerr v. Dittmann, No. 12-3006 (March 5, 2014), a three-judge panel for the Seventh Circuit Court of Appeals ruled the district court’s conclusion was not clearly erroneous. Thus, it upheld the lower court’s denial of Kerr’s habeas petition.

Kerr had said his lawyer, Gerald Boyle, told him before trial that he had a plea offer for first-degree reckless homicide and that charge carried a sentence of life in prison with possible parole after 13 years. First-degree reckless homicide actually carries a sentence of 0-40 years in Wisconsin, Kerr argued, and he would have taken that deal.

At the evidentiary hearing, 12 years later, both Boyle and the prosecuting attorney did not recall the specifics of the case but agreed that no plea offer was ever extended.

Boyle recalled mentioning the possibility of pleading guilty on the first-degree intentional homicide charge and trying for parole eligibility after 13 years, but Kerr refused.

The prosecutor, Mark Williams, testified that he makes written plea offers in 95 percent of his cases, and there was no written agreement in this case. His case file did not mention any plea discussions either, he said. Williams recalled that he and the victim’s family were intent on going trial to obtain a first-degree intentional murder conviction.

Kerr relied on written letters to him from Boyle’s daughter, co-counsel on the case, who said that she recalled an offer being made on the day of trial and that Kerr rejected it.

The district court dismissed the letters, stating Boyle’s daughter wrote them without familiarizing herself with the case and simply compounded the misunderstandings.

Ultimately, the appeals panel accepted the district court’s conclusion. “There is enough evidence that a fact-finder could come out either way,” wrote Judge Diane Wood.

“But whether we agree with the district court’s factual conclusion is not the question,” Wood explained for the three-judge panel. “There was conflicting evidence and the district court had to make a finding; it did so, and its finding is not clearly erroneous.”